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2013 (12) TMI 461 - AT - CustomsPenalty u/s 112(a) - Import of old and used goods - Held that - mobile phones, on examination, were found to be old and used. The contention of the applicant that these mobile phones are capital goods for development of softwares, prima facie, we are of the view that these mobile phones are not capital goods. Therefore, the applicant has failed to make out a case for waiver of pre-deposit of the penalty imposed on them. Accordingly, we direct the applicant to make a pre-deposit of 50% of the penalty imposed on them within four weeks - Decided against assessee.
Issues:
Waiver of pre-deposit of penalty under Section 112(a) of the Customs Act, 1962 for importing old and used mobile phones in violation of EXIM Policy. Analysis: The judgment deals with the issue of seeking waiver of pre-deposit of penalty imposed under Section 112(a) of the Customs Act, 1962 for importing 32 old and used mobile phones in violation of the EXIM Policy. The applicants contended that they were not aware of the phones' condition and imported them under a bona fide belief, claiming the phones were capital goods for software development in India, thus not violating the policy. The tribunal noted that the imported mobile phones were indeed old and used upon examination, leading to their confiscation as prohibited goods. The tribunal found the contention that the phones were capital goods for software development unconvincing, stating prima facie that they did not qualify as capital goods. Consequently, the tribunal ruled that the applicants failed to establish a case for waiving the penalty. The tribunal directed the applicants to make a pre-deposit of 50% of the penalty within four weeks and report compliance by a specified date. Upon such compliance, the pre-deposit of the remaining penalty amount would be waived, and recovery stayed during the appeal's pendency. This decision balanced the interests of the parties by requiring a partial pre-deposit while providing relief from the full penalty amount during the appeal process.
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